MARYLAND STATE BAR ASSOCIATION, INC.
COMMITTEE ON ETHICS
ETHICS DOCKET NO. 2006-7
Whether an attorney, in his capacity as a court appointed guardian, may communicate with a represented nursing facility in which his ward resides
You inquire whether Rule 4.2 of the Maryland Lawyers’ Rules of Professional Conduct prohibits an attorney who is appointed by a Court as Guardian of the Property of a disabled Resident of a Nursing Facility from communicating directly with the Nursing Facility, which is represented by an attorney (“Counsel”).
You state that the Nursing Facility, through Counsel, petitioned the Court to appoint a Guardian of the Property of the Resident. A member of your firm was thus appointed. Immediately following the appointment, your firm received a letter from the Nursing Facility’s Counsel stating “Please direct all communications to [the Nursing Facility] regarding [the Resident] through [name of Counsel].
You responded by requesting clarification regarding Counsel’s representation of the Nursing Facility, and requesting that Counsel identify the matters which are included in the scope of Counsel’s representation. As one example, you inquired whether the Nursing Facility had retained Counsel to apply for Medical Assistance Benefits. You also inquired as to whether any ongoing litigation existed of which you should be aware.
Counsel responded by advising you to “review the Maryland Rules of Professional Conduct for guidelines on communications with persons represented by counsel.”
You have reviewed Rule 4.2 and do not believe it is applicable because you are not “representing a client” but rather serving as a fiduciary on behalf of an incompetent ward; the matter in which Counsel was representing the Nursing Facility, the petition for guardianship, is completed and Counsel has not identified any other matter in which he represents the Nursing Facility regarding this Resident; and you are authorized by law or court order to speak with parties necessary to carry out your responsibilities as Guardian. You further state that it is necessary to have frequent contact with the Nursing Facility in order to apply for Medical Assistance Benefits, pay for the Resident’s care and handle other day-to-day issues.
You ask whether: 1) Rule 4.2 applies in this circumstance; 2) if it does apply, whether you may contact the Nursing Facility administration or corporate liaison to confirm representation by Counsel; and 3) if you are contacted by a representative of the facility, whether you may advise them of the letter by Counsel.
Because we believe that Rule 4.2 does not apply in this circumstance, we do not address parts 2 or 3 of your inquiry. MRPC 4.2 (a) provides:
Except as provided in paragraph (c), in representing a client, a lawyer shall not communicate about the subject of the representation with a person who the lawyer knows is represented in the matter by another lawyer unless the lawyer has the consent of the other lawyer or is authorized by law or court order to do so.
The Comments to Rule 4.2 explain that the “Rule does not prohibit communication with a person, or an employee or agent of the person, concerning matters outside the representation. For example, the existence of a controversy between two organizations does not prohibit a lawyer for either from communicating with nonlawyer representatives of the other regarding a separate matter.”
Maryland has defined the guardian-ward relationship. A guardian is “a fiduciary who has control over the ward’s property, subject to court supervision. Seaboard Sur. Co. v. Boney, 135 Md.App. 99, 112 (2000), cert. denied363 Md. 206 (2001). A guardian is not an agent of a ward, because guardians are not subject to the ward’s control; rather, the guardians serve a unique role as agents of the court. Id. In reality the court is the guardian; an individual who is given that title is merely an agent or arm of that tribunal in carrying out its sacred responsibility. Id. at 113. Thus, a ward may not select, instruct, terminate, or otherwise control his guardian.” Id., Md. Code. Ann., Estates and Trusts, § 13-201(c).
In contrast, an attorney-client relationship “is an agent-principal relationship.” Id. at 112. “A client’s right to select and direct his or her attorney is a fundamental aspect of attorney-client relations. Thus, the principal-agent relationship between a client and an attorney is always a consensual one.”
From this explication, it does not appear that the member appointed by the court as Guardian “represents” the Resident. From your recitation of the facts, no attorney-client relationship exists, only a guardian-ward relationship. Accordingly, MRPC 4.2 is not applicable to communications between the Guardian and the Nursing Facility.